When the issues of an appeal are important to an industry at large, or will affect a particular economic, political or social segment of the community beyond the actual party litigants to the case, non-parties may seek to file with the appellate court an amicus curiae brief, or a 'friends of the court' brief. In most appellate courts, including the Hawai'i Supreme Court, the Ninth Circuit and the U.S. Supreme Court, there is no right to file an amicus curiae brief. Interested non-parties must first move for permission. Generally, the movant must show that:

(1) its interests will not be adequately represented; or that

(2) it has an interest in another case that could be affected by the decision in the present appeal (though not affected enough to warrant intervention to become a party to the case); or that

(3) it has a unique perspective or information currently not available which will assist the appellate court in determining the appeal.

Ryan v. Commodity Futures Trading Commission, 125 F.3d 1062, 1063 (7^th Cir. 1997); citing Miller-Wohl Co. V. Commissioner of Labor & Industry, 694 F.2d 203 (9^th Cir. 1982). In many courts, the proposed amicus curiae brief must be attached to the motion.

The tendency with many appellate judges is to grant motions to file an amicus curiae brief. Recently however, the United States Court of Appeals for the Seventh Circuit denied a motion to file an amicus curiae brief under Rule 29 of the Federal Rules of Appellate Procedure. The 1997 case, Ryan v. Commodity Futures Trading Commission, provides excellent instruction on how to successfully seek leave to file an amicus brief. 125 F.3d 1062.

In Ryan the Chicago Board of Trade (CBT)

sought to file an amicus brief in support of the petitioner, Ryan, who was challenging a disciplinary order of the Commodity Futures Trading Commission. Chief Judge Posner found that the CBT's proposed brief did not satisfy any of the accepted criteria for amicus curiae briefs, but merely reiterated Petitioner Ryan's brief. Therefore, he denied the motion.

Judge Posner noted that rather than becoming a friend of the court, the role of most so-called amici curiae is adversarial. Non-parties ally themselves with one of the litigants and duplicate the arguments already made in the parties' briefs, thereby extending the length of the litigant's brief. Little effort is devoted to providing the appellate court with considerations related to the issues on appeal, but which, for some reason, have not yet been discussed by the litigants themselves.

"The ban of lawyers is prolixity and duplication, [ ] [which,] for obvious reasons [,] is especially marked in commercial cases with large monetary stakes. In an era of heavy judicial caseloads and public impatience with the delays and expense of litigation, we judges should be assiduous to bar the gates to amicus curiae briefs that fail to present convincing reasons why the parties' briefs do not give us all the help we need for deciding the appeal." Ryan, 125 F.3d at 1064.

Ryan is required reading for appellate counsel contemplating a motion to file an amicus curiae brief. It tells the practitioner what the motion's focus should be in seeking leave to file an amicus curiae brief.